EXHIBIT 10.6
XXXXX MOUNTAIN INDUSTRIES, INC.
Landlord
and
PERISCOPE SPORTSWEAR, INC
Tenant
____________________________________
LEASE
___________________________________
PREMISES:
00XX XXXXXX XXXX.
XXXXX XXXXXX, XXX XXXXXX
TABLE OF CONTENTS
Article Page
------- ----
1. Definitions ........................................................ 1
2. Demise and Term .................................................... 3
3. Rent ............................................................... 3
4. Use of Demised Premises ............................................ 4
5. Preparation of Demised Premises .................................... 4
6. Tax and Operating Expense Payments ................................. 4
7. Common Areas ....................................................... 5
8. Security ........................................................... 5
9. Subordination ...................................................... 6
10. Quiet Enjoyment .................................................... 7
11. Assignment, Subletting and Mortgaging .............................. 7
12. Compliance with Laws ............................................... 8
13. Insurance and Indemnity ............................................ 8
14. Rules and Regulations .............................................. 9
15. Alterations and Signs .............................................. 9
16. Landlord's and Tenant's Property ...................................10
17. Repairs and Maintenance ............................................10
18. Public Utility and Other Charges ...................................10
19. Access, Changes and Name ...........................................11
20. Mechanics' Liens and Other Liens ...................................11
21. Non-Liability ......................................................12
22. Damage or Destruction ..............................................12
23. Eminent Domain .....................................................13
24 Surrender ..........................................................14
25. Events of Default ..................................................14
26. Landlord's Rights Upon Tenant's Default ............................15
27. Damages ...........................................................15
28. Affirmative Waivers ................................................16
29. No Waivers .........................................................16
30. Broker .............................................................16
31. Notices ............................................................17
32. Estoppel Certificates ..............................................17
33. Memorandum of Lease ................................................17
34. Ecra Compliance ....................................................18
35. Miscellaneous ......................................................18
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Site Plan
Exhibit C - Work and Installations to Be Performed and Furnished in the Demised
Premises
Exhibit D - Rules and Regulations
LEASE, dated February 2nd, 1990, between XXXXX MOUNTAIN INDUSTRIES, Inc., a
New York Corporation, having an office at 000 Xxxxx Xxxxx (X.X. Xxx 0000),
Xxxxxxxx, Xxx Xxxxxx 00000 ("Landlord"), and PERISCOPE SPORTSWEAR, INC., a New
York Corporation, having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used herein the following shall have the meanings indicated:
A. Advance Rent: $ 13,125.00
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate.
D. Broker: Andover Realty, Xxxxx Xxxxxx.
E. Building: The building or buildings located on the Land in North Bergen,
New Jersey as shown on the attached Exhibit B.
F. Commencement Date: The earlier of (a) the date on which the Demised
Premises shall be Ready for Occupancy, or (b) the date Tenant, or anyone
claiming under or through Tenant, first occupies the Demised Premises or any
part thereof for any purpose other than the performance of Tenant's Work.
G. Common Areas: All areas, spaces and improvements in the Building and on
the Land which Landlord makes available from time to time for the common use and
benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant.
H. Demised Premises: The portion of the Building that is outlined in red on
the floor plan attached hereto as Exhibit B. The Demised Premises contains or
will contain approximately 30,000 square feet of Floor Space.
I. Expiration Date: The date that is the day before the Tenth (l0th)
anniversary of the Commencement Date. If the Commencement Date is not the first
day of a month, then the Tenth (10th) anniversary of the last day of the month
in which the Commencement Date occurs. Any earlier termination of this Lease
shall not affect the "Expiration Date."
J. Fixed Rent: For years one (1) through five (5) of the Lease Term at the
annual rate of Five and 25/100 Dollars ($5.25) per square foot; for years six
(6) through ten (10) of the
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Lease Term at the annual rate of Five and 90/100
Dollars per square foot multiplied by the Floor Space of the Demised Premises.
It is understood that the Fixed Rent shall be an absolutely net return to
Landlord except as otherwise expressly provided in this Lease.
K. Floor Space: The sum of the floor area stated in square feet bounded by
the exterior faces of the exterior walls, or by the exterior or Common Areas
face of any wall between the Premises and any portion of the Common Areas, or by
the center line of any wall between the Premises and space leased or available
to be leased to a tenant or occupant.
L. Guarantor: None.
M. Land: The land described on Exhibit A, upon which the Building is
located.
N. Landlord's Work: The materials and work to be furnished, installed and
performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
O. Legal Requirements: Laws, ordinances, rules, regulations, orders and
directives of all governmental, public or quasi-public authorities having
jurisdiction over the Land and Building.
P. Operating Expenses: Includes (1) the cost and expense for the repair,
maintenance, policing, insurance and operation of the Building and Land. The
"Operating Expenses" shall include, without limitation, the following: (i) the
cost for rent, All-Risk, casualty, boiler and fidelity insurance, (ii)
reasonable legal, accounting and other professional fees relating to the Demised
Premises and/or Tenant's use and occupation thereof. All items included in
Operating Expenses shall be determined in accordance with generally accepted
accounting principles consistently applied.
Q. Permitted Uses: General warehouse, distribution, administrative offices,
designing and fabricating clothing models and bulk cutting.
R. Ready for Occupancy: The condition of the Demised Premises when for the
first time the Landlord's Work shall have been substantially completed and a
temporary or permanent Certificate of Occupancy shall have been issued
permitting use of the Demised Premises for the Permitted Uses. The fact that
minor or insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, the noncompletion of which does not
materially interfere with Tenant's use of the Demised Premises, will not negate
substantial completion.
S. Real Estate Taxes: The real estate taxes, assessments and special
assessments (or any imposition in lieu thereof), sewer rents, water charges and
all other similar charges imposed upon the Building and Land by any federal,
state, municipal or other governmental bodies or authorities.
T. Rent: The Fixed Rent and the Additional Charges.
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U. Security Deposit: Letter of credit in the sum of $26,250.00
V. Tenant's Fraction: 45.2%. If the size of the Demised Premises or
the Building shall be changed from the initial size thereof, due to any taking,
any construction or otherwise, the Tenant's Fraction shall be changed to the
fraction the numerator of which shall be the Floor Space of the Demised Premises
and the denominator of which shall be the Floor Space of the Building.
W. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
X. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout,, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term subject to all conditions of record
provided such conditions of record do not interfere with Tenant's Permitted
Uses. The Commencement Date and the Fixed Rent payable shall be memorialized in
writing.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed' Rent in equal monthly installments, in
advance, on the first day of each calendar month during the Term (except that
Tenant shall pay, upon the execution and delivery of this Lease, the Advance
Rent, to be applied against the first installment(s) of Fixed Rent). If the
Commencement Date occurs on a day other than the first day of a calendar month,
the Fixed Rent for that month shall be prorated.
3.02. The Rent shall be paid to Landlord or its agent at its office, or to
such other place as Landlord shall designate by notice to Tenant. Tenant shall
pay the Rent promptly when due without notice or demand therefor and without any
abatement, deduction or setoff for any reason whatsoever.
3.03. No acceptance by Landlord of a lesser amount than the correct Rent
shall be deemed to be other than a payment on account, nor shall any endorsement
on any check or any accompanying letter be deemed an accord and satisfaction,
and Landlord may accept such payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law provided.
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3.04. Any payment due Landlord under this Lease which is not paid on or
before five (5) days after written notice that same is due, shall, from the due
date, until such payment is received by Landlord, bear interest at the prime
rate of Chemical Bank of New York plus 4% (the "Late Payment Rate").
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and shall not use or permit the use of any part thereof for any other
purpose.
4.02. If any governmental license or permit other than a Certificate of
Occupancy shall be required for the lawful conduct of Tenant's business in the
Demised Premises, Tenant shall procure, comply with and maintain such license or
permit.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in Exhibit C. Tenant shall occupy the Demised
Premises promptly after Landlord notifies Tenant that the Demised Premises are
Ready for Occupancy. The taking of possession by Tenant of the Demised Premises
shall be evidence as against Tenant that the Demised Premises were in good and
satisfactory condition at the time such possession was taken, except for the
minor or insubstantial details of which Tenant gives Landlord notice within
thirty (30) days of the Commencement Date, specifying such details with
reasonable particularity. Landlord will promptly take steps to remedy any such
minor details.
5.02. If the substantial completion of the Landlord's Work shall be delayed
due to (a) any delay, act or omission of Tenant or any of its agents or
contractors or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion of any special work or long lead time items
requested by Tenant, then the Demised Premises shall be deemed Ready for
Occupancy on the date when they would have been ready but for such delay(s).
5.03. If the Demised Premises are not Ready for Occupancy by July 1, 1990
then Tenant shall be entitled to free rent for each day by which Demised
Premises are not ready beyond July 1, 1990.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay to Landlord, Tenant's Fraction of the Real Estate
Taxes within ten (10) days after Landlord submits an invoice therefor to Tenant,
subject however to the following:
a) For the year 1990 (hereafter the "Base Year") Tenant's Fraction will not
exceed $1.25 per square foot regardless of the actual Real Estate Taxes
assessed.
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b) For the years following the Base Year, Tenant's obligation will be the
excess (if any) in Real Estate Taxes for said year over the Real Estate Taxes
for the Base Year, multiplied by Tenant's Fraction.
6.02. Tenant shall pay to Landlord Tenant's Fraction of the Operating
Expenses within ten (10) days after Landlord submits an invoice therefor to
Tenant. Upon request, Landlord shall provide to Tenant copies of all bills used
to calculate the Operating Expenses.
6.03. Each statement or invoice given by Landlord pursuant to Section 6.01
or Section 6.02 shall be conclusive and binding upon Tenant unless within thirty
(30) days after the receipt thereof and appropriate back-up documentation Tenant
shall dispute the statement, specifying the particular respects in which the
statement is claimed to be incorrect. If such dispute is not settled by
agreement, either party may submit the dispute to arbitration. Pending the
determination of such dispute, Tenant shall, within ten (10) days after receipt
of such statement, pay the Additional Charges in accordance therewith, without
prejudice to Tenant's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay to Tenant any overpayment resulting from
compliance with Landlord's statement.
ARTICLE 7 - COMMON AREAS
7.01. Landlord, or its agent, will operate, manage, equip, light, repair
and maintain, the Common Areas for their intended purposes. Landlord reserves
the right to temporarily close the Common Areas from time to time, and to add to
or make changes therein, provided same shall not unreasonably block or interfere
with Tenant's means of ingress or egress to and from the Demised Premises.
7.02. Tenant, its employees, agents, customers and invitees, shall have the
non-exclusive right, in common with Landlord and all others to whom Landlord
grants such right, but subject to the Rules and Regulations, to use the Common
Areas.
ARTICLE 8 - SECURITY
8.01. As security for the performance by Tenant of all the terms,
conditions and covenants of this Lease upon Tenant's part to be performed,
Tenant shall provide to Landlord an irrevocable Letter of Credit in the amount
of ($26,250.00) in form and substance satisfactory to Landlord. Landlord shall
have the right, upon thirty (30) days notice to Tenant (except for Tenant's non-
payment of Rent or for Tenant's failure to comply with Article 8.03 for which no
notice shall be required), and regardless of the exercise of any other remedy
the Landlord may have by reason of a default, to draw upon said Letter of Credit
to cure any default of Tenant and if Landlord does so, Tenant shall upon demand,
additionally fund the Letter of Credit with the amount so drawn so that Landlord
shall have the full deposit on hand at all times during the term of this Lease.
In the event of a sale of the Building or a lease of the Building, subject to
this Lease, Landlord shall have the right to transfer the security to the vendee
or lessee.
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8.02. The Letter of Credit shall be the type which is automatically renewed
on an annual basis (annual Renewal Date); and will contain a provision requiring
the issuer thereof to give the beneficiary (Landlord) sixty (60) day advance
written notice of its intention not to renew the Letter of Credit on the next
Annual Renewal Date.
8.03. In the event Tenant shall fail to deliver to Landlord a substitute
irrevocable Letter of Credit, in the amount stated above, on or before thirty
(30) days prior to the next Annual Renewal Date, said failure shall be deemed a
default under this Lease. Landlord may, in its discretion treat this the same as
a default in the payment of rent or any other default and pursue the appropriate
remedy. In addition, and not in limitation, Landlord shall be permitted to draw
upon the Letter of Credit as in the case of any other default by Tenant under
this Lease,
ARTICLE 9 - SUBORDINATION
9.01. This Lease is and shall be subordinate to all ground leases and
underlying leases of the Land and/or the Building now or hereafter existing and
to all Mortgages which may now or hereafter affect the Land and/or Building, to
each and every advance made or hereafter to be made under such Mortgages, and to
all renewals, modifications, replacements and extensions of such leases and such
Mortgages. The provisions of this Section 9.01 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination.
9.02. If any act or omission of Landlord would give Tenant the right to
cancel or terminate this Lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (a) until it has given written notice of such act
or omission to Landlord and each Superior Mortgagee and each Superior Lessor
whose name and address shall previously have been furnished to Tenant, and (b)
until a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such Superior
Mortgage or Superior Lessor shall have become entitled under such Superior
Mortgage or Superior Lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord
would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy), provided such Superior Mortgagee or Superior Lessor shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's Landlord under this Lease
and shall promptly execute and deliver any instrument that such
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Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; or (c) be bound
by any previous modification of this Lease or any previous prepayment of more
than one month's Fixed Rent or Additional Charges, unless -such modification or
prepayment shall bays been expressly approved in writing by the Superior Lessor
of the Superior Lease or the Mortgagee of the Superior Mortgage through or by
reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of Tenant's
other obligations hereunder, Tenant shall peaceably and quietly have, hold and
enjoy the Demised Premises without hindrance, ejection or molestation by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, (a) assign or otherwise transfer this Lease, (b)
sublet the Demised Premises or any part thereof, or allow the same to be used,
occupied or utilized by anyone other than Tenant, it present subsidiaries or
affiliates or (c) mortgage, pledge, encumber or otherwise hypothecate this Lease
without in each instance obtaining the prior written consent of Landlord. Tenant
shall not require Landlord's permission to assign the Lease if the assignee buys
all or substantially all of Tenants assets, carries on the business and is
financially as responsible as Tenant. Tenant shall provide current audited
financial statements of itself and the assignee to Landlord.
11.02. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant.
11.03. Any assignment shall be made only if, and shall not be effective
until, the assignee shall execute and deliver to Landlord an agreement
satisfactory to Landlord whereby the assignee shall assume Tenant's obligations
under this Lease. Notwithstanding any assignment, 'whether or not in violation
of this Lease, and notwithstanding the acceptance of Rent by Landlord from an
assignee, or any other party, the prior Tenant(s) shall remain fully liable for
the payment of the Rent and for Tenant's other obligations under this Lease.
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ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, expenses and penalties which may be imposed upon Landlord because of
Tenant's failure to comply with the provisions of this Section 12.01.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain All Risk insurance in respect of the
Building and other improvements on the Land normally covered by such' insurance
(except for the property Tenant is required to cover under Section 13.02) for
the benefit of Landlord and any other parties Landlord may designate, as their
interests may appear, but not for the benefit of Tenant, and shall maintain rent
insurance as required by. any Superior Lessor or any Superior Mortgagee. The All
Risk insurance will be in amounts not less than the amount sufficient to avoid
the effect of the co-insurance provisions of the applicable policy or policies.
Landlord shall have the right to provide any insurance maintained or caused to
be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business therein, with Landlord (and its designees) as
an additional named insured(s), with limits of not less than $3,000,000 for
bodily injury or death to any one person and $5,000,000 for bodily injury or
death to any number of persons in any one occurrence, and $500,000 for property
damage, including water damage and sprinkler leakage legal liability, and (b)
All Risk insurance in respect of Tenant's stock in trade, fixtures, and all
other personal property of Tenant in the Demised Premises in not less than 80%
of the full insurable value of the property covered and not less than the amount
sufficient to avoid the effect of the co-insurance provisions of the applicable
policy or policies. Tenant shall deliver to Landlord certificates for such fully
paid-for policies at least 10 days before the Commencement Date. Tenant shall
procure and pay for renewals of such insurance before the expiration thereof,
and Tenant shall deliver to Landlord certificates therefor at least thirty (30)
days before the expiration of any existing policy. All such policies shall be
issued by companies of recognized responsibility licensed to do business in New
Jersey, and all such policies shall contain a provision whereby the same cannot
be cancelled unless Landlord and any additional insured(s) are given at least
thirty (30) days' prior written notice of such cancellation.
13.03. Tenant shall not do or permit anything to be done in respect of the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company whereby any insurance then in effect in
respect to the Land and Building shall become void or suspended or whereby any
premiums in respect of insurance maintained by Landlord shall be higher than
those which would normally have been in effect for the occupancy contemplated
under the Permitted Uses. In case of a breach of the provisions of this Section
13.03, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall
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(a) indemnify Landlord and hold Landlord harmless from and against any loss
which would have been covered by insurance which shall have become void or
suspended because of such breach by Tenant and (b) pay to Landlord any and all
increases of premiums on any insurance, including, without limitation, rent
insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold Landlord harmless from and against
any and all claims arising from or in connection with (a) the conduct of
Tenant's business, or any work done, or any condition created in the Demised
Premises (b) any act, omission or negligence of Tenant or any of its subtenants
or licensees; (c) any accident, injury or damage whatever (except to the extent
caused by Landlord's negligence) occurring in the Demised Premises; together
with all costs, expenses and liabilities incurred in or in connection with each
such claim or action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations attached hereto as Exhibit D; provided,
however, that in case of any conflict or inconsistency between the provisions of
this Lease and any of the Rules and Regulations, the provisions of this Lease
shall control. Landlord shall have the right to change or amend the Rules and
Regulations.
ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any cuts in the walls, ceilings, roofs, or floors thereof, or
change the exterior color or architectural treatment of the Demised Premises,
without on each occasion first obtaining the consent of Landlord. Tenant shall
submit to Landlord plans and specifications for such work at the time Landlord's
consent is sought before proceeding with any permitted alteration. For all work
which will cost more than Fifty Thousand and 00/100 Dollars ($50,000.00), Tenant
shall deliver to Landlord a performance bond and a labor and materials payment
bond (issued by a corporate surety licensed to do business in New Jersey), each
in an amount equal to 125% of such estimated cost and in form satisfactory to
Landlord.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. In placing any permitted signs on or about the Demised
Premises, Tenant shall comply with the Legal Requirements and obtain all
required permits and/or licenses at its expense.
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ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02.
16.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office furniture, furnishings and
equipment, whether or not attached to or built into the Demised Premises, which
are installed without expense to Landlord (collectively, "Tenant's Property")
and can be removed without structural damage to the Building shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term and upon the termination of this lease; provided that Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall be responsible for all repairs to the Demised Premises,
interior and exterior (including repairs to the roof walls and floors). In
addition, Tenant shall keep and maintain all interior portions of the Demised
Premises including, without limitation, all building equipment, windows, doors,
loading bay doors and shelters, plumbing, sanitary and electrical systems,
heating, ventilating and air conditioning ("HVAC") systems in a clean and
operating condition. Tenant shall also make all repairs to the Building and the
Common Areas the need for which arises out of (a) the performance or existence
of the Tenant's Work or alterations, (b) the installation, use or operation of
the Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or .(d) the act, omission, misuse or neglect
of Tenant, its subtenants or invitees. Tenant shall not permit or suffer the
over-loading of the floors of the Premises beyond Two Hundred Fifty (250) pounds
per square foot.
17.02. Except as provided in 17.01, Landlord shall be responsible for the
structural integrity of the Building.
17.03. Landlord will assign or transfer any warranties obtained from
suppliers, etc. and Tenant may enforce such warranties at its cost and expense.
ARTICLE 18 - PUBLIC UTILITY AND OTHER CHARGES
18.01. Tenant shall pay all charges for heat, air-conditioning and all
utility services supplied to the Demised Premises as measured by meters relating
to Tenant's use, and the cost of repair, maintenance, replacement, and reading
of any meters measuring Tenant's consumption thereof; provided, however, that if
the Demised Premises are not separately metered, Tenant shall pay its pro rata
share of any such charges. If Landlord is permitted by law to provide electric
energy to the Demised Premises by re-registering meters or otherwise
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and to collect any charges for electric energy, Landlord shall have the right to
do so, in which event Tenant shall pay to Landlord upon receipt of bills
therefor charges for electric energy provided the rates for such electric energy
shall not be more than the rates Tenant would be charged for electric energy if
furnished directly to Tenant by the public utility which would otherwise have
furnished electric energy.
18.02. Tenant's use of electric energy in the Demised Premises shall not at
any time exceed the capacity of .any of the electrical conductors and equipment
in or otherwise serving the Demised Premises. In order to insure that such
capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord, but at Tenant's cost and expense.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Landlord reserves the right, to install, erect, use and maintain
pipes, ducts and conduits in and through the Demised Premises, provided such are
properly enclosed.
19.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at any time or times (a) to examine the ....
Demised Premises and to show them to actual and prospective Superior Lessors,
Superior Mortgagees, or prospective purchasers of the Building, and (b) upon
reasonable prior notice, except in case of emergency, to make such repairs,
alterations, additions and improvements in or to the Demised Premises and/or in
or to the Building or its facilities and equipment as Landlord is required or
desires to make. During the period of twelve (12) months prior to the Expiration
Date, Landlord and its agents may exhibit the Demised Premises to prospective
tenants upon reasonable notice to Tenant.
19.03. Landlord reserves the right, at any time to make such changes,
alterations, additions and improvements in or to the Building as Landlord shall
deem necessary or desirable, and may adopt any name for the Building or change
its street address.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease implies any consent or agreement on
the part of Landlord to subject Landlord's interest to any liability under any
mechanic's or other lien law. If any mechanic's or other lien or any notice of
intention to file a lien is filed against the Land or the Demised Premises, for
any work, labor, service or materials claimed to have been performed or
furnished for or on behalf of Tenant or anyone holding through or under Tenant,
Tenant shall cause the same to be cancelled and discharged of record by payment,
bond or order of a court of competent jurisdiction within fifteen (15) days
after notice by Landlord to Tenant.
11
ARTICLE 21 - NON-LIABILITY
21.01. Landlord shall not be liable to Tenant for any loss, injury or
damage to Tenant or to any other person, or to its or their property,
irrespective of the cause of Such injury, damage or loss, unless caused by or
resulting from the negligence of Landlord, its agents, servants or employees in
the operation or maintenance of the Land or Building. Landlord shall not be
liable (a) for any such damage caused by other tenants or persons in, upon or
about the Land or Building, or caused by operations in construction of any
private, public or quasi-public work; or (b) even if negligent, for
consequential damages arising out of any loss of use of the Demised Premises or
any equipment or facilities therein by Tenant or any Person claiming through or
under Tenant.
21.02. Tenant shall look solely to the estate and property of Landlord in
the Land and Building (or the proceeds received by Landlord on a sale of such
estate and property but not the proceeds of any financing or refinancing
thereof) in the event of any claim against Landlord arising out of or in
connection with this Lease, the relationship of Landlord and Tenant or Tenant's
use of the Demised Premises or the Common Areas, and Tenant agrees that the
liability of Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas shall be limited to such estate and property of Landlord (or
sale proceeds). Nothing herein contained will prohibit or limit Tenant's
recovery under any Insurance carried by Landlord.
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. If all or part of the Demised Premises shall be damaged or destroyed
or rendered completely or partially untenantable on account of fire or other
casualty, the Rent shall be abated or reduced, as the case may be, in the
proportion that the untenantable area bears to the total area of the Demised
Premises, for the period from the date of the damage or destruction to (a) the
date the damage to the Demised Premises shall be substantially repaired, or (b)
if the Building and not the Demised Premises is so damaged or destroyed, the
date on which the Demised Premises shall be made tenantable; provided, however,
should Tenant reoccupy a portion of the Demised Premises during the period of
repair or restoration. Tenant shall pay Rent on the reoccupied portion on a pro-
rata basis from the date of occupancy.
12
22.03. If more than twenty-five percent (25%) of the Building or more than
twenty-five percent (25%) of the Demised Premises shall be totally damaged or
destroyed by fire or other casualty, then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within ninety (90)
days after the date of the fire or other casualty.
22.04. Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Demised Premises or of the Building pursuant to this Article 22. Landlord
shall use its best efforts to make such repair or restoration promptly and in
such manner as to not unreasonably interfere with Tenant's use and occupancy of
the Demised Premises, but Landlord shall not be required to authorize over-time
or week-end work for such repair or restoration work. Landlord shall, to the
extent comparable space is available, make such space available to Tenant during
the course of repair if said repairs require a period in excess of sixty (60)
days. Tenant shall pay no more for such space than the Rent reserved herein.
ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any competent
authority under the power of eminent domain or in the event of conveyance of the
whole of the Demised Premises in lieu thereof, this Lease shall terminate as of
the day possession shall be taken by such authority. If 25% or less of the Floor
Space of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority. If more than 25% of the Floor Space
of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority, but either party shall have the
right to terminate this Lease upon notice given to the other party within 30
days after such taking possession. If more than 25% of the Floor Space of the
Building shall be so taken or conveyed, Landlord may, by notice to Tenant,
terminate this Lease as of the day possession shall be taken. If so much of the
parking facilities shall be so taken or conveyed that the number of parking
spaces necessary, in Landlord's judgment, for the continued operation of the
Building shall not be available, Landlord shall, by notice to Tenant, terminate
this Lease as of the day possession shall be taken. If this Lease shall continue
in effect as to any portion of the Demised Premises not so taken or conveyed,
the Rent shall be computed as of the day possession shall be taken on the basis
of the remaining Floor Space of the Demised Premises. Except as specifically
provided herein, in the event of any such taking or conveyance there shall be no
reduction in Rent. If this Lease shall continue in effect, Landlord shall, at
its expense, but shall be obligated only to the extent of the net award or other
compensation (after deducting all expenses in connection with obtaining same)
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term of
any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, and Tenant
shall make all alterations or replacements to the Tenant's Property and
decorations in the Demised Premises. All awards and compensation for any taking
or conveyance, whether for the whole or a part of the Land or Building, the
Demised Premised or otherwise, shall be property of Landlord, and Tenant hereby
assigns to Landlord all of
13
Tenant's right, title and interest in and to any and all such awards and
compensation, including, without limitation, any award or compensation for the
value of the unexpired portion of the Term. Tenant shall be entitled to claim,
prove and receive in the condemnation proceeding such award or compensation as
may be allowed for the Tenant's property and for loss of business, good will,
and depreciation or injury to and cost of removal of the Tenant's property, but
only if such award or compensation shall be made by the condemning authority in
addition to, and shall not result in a reduction of, the award or compensation
made by it to Landlord.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction a~ Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's property therefrom.
24.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term.
ARTICLE 25 - EVENTS OF DEFAULT
25.01. If, during the Term, any one of the following acts or occurrences
shall happen then Tenant shall be in default hereunder ("Event or Default"):
a) If Tenant or any Guarantor shall make an assignment for the benefit of
creditors.
b) If Tenant or any Guarantor shall file a voluntary petition in
bankruptcy or be adjudicated a bankrupt or insolvent (under any federal or state
laws).
c) If Tenant or any Guarantor shall seek or consent or acquiesce in the
appointment of any trustee, receiver, liquidator, etc. of a substantial part of
its property.
d) If an involuntary petition in bankruptcy, or a proceeding to appoint a
receiver, trustee or liquidator is filed against Tenant or any Guarantor and
such petition or proceeding is not vacated or discharged within ninety (90)
days.
e) If Tenant shall fail to pay any Rent when due and such non-payment
continues for five (5) days after Landlord gives notice of non-payment.
f) If Tenant fails to observe or perform any other covenant or condition
of this Lease and such failure continues and is not remedied within fifteen (15)
days after Landlord shall have given Tenant a notice specifying same; or, if the
condition cannot be remedied within fifteen (15) days, Tenant has not commenced
remedial action and/or is not diligently pursuing same.
g) If Tenant shall vacate or abandon the Demised Premises.
14
ARTICLE 26 - LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
26.01. Should any Event of Default occur then Landlord may, at its option,
and notwithstanding the fact that Landlord may have other remedies at 1~ or in
equity, give to Tenant a notice of intention to end the Term at the end of five
(5) days from the date of service of such notice, and upon the expiration of
said five (5) days, this Lease shall terminate with the same effect as if that
day were the Expiration Date of the Lease, but Tenant shall remain liable for
damages as provided in Article 27.
26.02. If this Lease shall terminate as provided above, Landlord (or
Landlord's agents) may:
a) Re-enter the Demised Premises, either by summary dispossess proceedings
or by any suitable action or proceeding at law and repossess the same, and may
remove any person(s) therefrom so Landlord may have, hold and enjoy the Demised
Premises.
b) As agent for Tenant, take possession of any furniture or fixtures of
Tenant found upon the Demised Premises after taking possession thereof pursuant
to Paragraph 26.02(a) and to store the same at Tenant's expense or sell the same
at any private or public sale and apply the proceeds to any amount due Landlord.
Tenant waives any right to notice of execution or levy in connection therewith.
c) Retain all monies paid by Tenant to Landlord under the Lease, but such
monies shall be credited by Landlord against any Rent due or against any damages
payable by Tenant under Article 27 or pursuant to any law or entry of judgment.
d) To the extent permissible by applicable law, obtain injunctive
relief or specific performance.
e) Collect damages from Tenant as set forth in Article 27.
26.03. No right or remedy reserved to Landlord in this Lease shall be
exclusive of any other right or remedy and any right and remedy shall be
cumulative and in addition to any other right or remedy hereunder or now or
hereafter existing at law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated as provided in Article 26.01, Tenant
shall peaceably quit and surrender the Premises to Landlord on the date
specified in the notice given, and Landlord shall be entitled to recover from
Tenant as and for liquidated damages an amount equal to all Fixed Rent and
Additional Charges (conclusively presuming the Additional Charges to be the same
as was payable for the calendar quarter immediately preceding such termination)
reserved hereunder for the unexpired portion of the Term. Such sums shall be
payable upon the due dates therefor specified herein following such termination
and until the Expiration Date, provided, however, that if Landlord shall relet
the Demised Premises during said period, Landlord shall credit Tenant with the
net rents received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such reletting the reasonable expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the reasonable expenses of reletting,
including, without limitation, altering and preparing the Demised Premises for
new tenants, brokers'
15
commissions, legal fees, and all other reasonable expenses properly chargeable
against the Demised Premises and the rental therefrom, it being understood that
any such reletting may be for a period shorter or longer than the period ending
on the Expiration Date; but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord hereunder,
nor shall Tenant be entitled in any suit for the collection of damages or to a
credit in respect of any rents from a reletting, except to the extent that such
net rents are actually received by Landlord.
27.02 Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 27, or under any provision of law,
or had Landlord not re-entered the Demised Premises.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and all persons claiming under Tenant,
does hereby waive and surrender all rights and privileges which it or they might
have by reason of any present or future law, to redeem the Demised Premises or
to have a continuance of this Lease after being dispossessed or ejected from the
Demised Premises by process of law or under the terms of this Lease or after its
termination as herein provided.
ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 30 - BROKER
30.01. Landlord and Tenant represent to each other that no broker except
the Broker was instrumental in bringing about or consummating this Lease and
that they had no conversations or negotiations with any broker except the Broker
concerning the leasing of the Demised Premises. Landlord and Tenant agree to
indemnify and hold the other harmless against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys ' fees and expenses, arising
out of any conversations or negotiations had by Landlord to Tenant or as the
case may be with any broker other than the Broker. Landlord shall pay any
brokerage commissions due the Broker pursuant to a separate agreement between
Landlord and the Broker.
16
ARTICLE 31 - NOTICES
31.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given or made by either party to the
other, pursuant to this Lease or pursuant to any applicable Legal Requirement,
shall be in writing and shall be deemed to have been properly given or made only
if hand delivered (on date of delivery), sent by private courier with receipt
required (on date of delivery), or sent by United States registered or certified
mail, return receipt requested, (on the date of delivery) addressed to the other
party at the address hereinabove set forth (except that after the Commencement
Date, Tenant's address, unless Tenant shall give notice to the contrary, shall
be the Building); as to Landlord, to the attention of General Counsel with a
concurrent Notice to the attention of Controller. Either party may, by notice as
aforesaid, designate a different address or addresses for notices, statements,
demands, consents, approvals or other communications intended for it.
ARTICLE 32 - ESTOPPEL CERTIFICATES
32.01. Each party shall, at any time as requested by the other party, upon
not less than ten (10) days' prior notice, execute and deliver to the requesting
party a statement certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), certifying the dates to which
the Fixed Rent and Additional Charges have been paid, stating whether or not, to
the best knowledge of the party giving the statement, the requesting party is in
default in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the party giving the statement shall have
knowledge, and stating whether or not, to the best knowledge of the party giving
the statement, any event has occurred which with the giving of notice or passage
of time, or both, would constitute such a default of the requesting party, and,
if so, specifying each such event.
ARTICLE 33 - MEMORANDUM OF LEASE
33.01. Tenant shall not record this Lease. However, at the request of
either party the other shall promptly execute, acknowledge and deliver a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party requests such
memorandum of Lease shall pay all recording costs and expenses, including any
taxes that are due upon such recording.
17
ARTICLE 34 - ECRA COMPLIANCE
34.01. Six months before the end of the Term or prior expiration of the
Term of this Lease, Tenant shall make any filing required under the New Jersey
Environmental Cleanup Responsibilities Act (N.J.S.A. 13: 1K-6 et seq., "ECRA")
------
respecting the proposed termination of its activities at the Demised Premises at
the termination of the Lease and furnish Landlord with a copy thereof. If Tenant
fails to file Landlord may file and charge Tenant the costs thereof as
additional Rent. To the extent necessary, Landlord will execute any applications
or affidavits required for securing any such approval.
34.02. If Tenant is unable to obtain any necessary approval under ECRA
prior to the end of the Term and Landlord is deprived of the use of the Demised
Premises, this Lease shall terminate as otherwise herein provided, however,
Landlord shall continue to provide access to the Demised Premises to Tenant, its
agents and employees and the New Jersey Department of Environmental Protection
as necessary to complete the ECRA process and Tenant shall continue to pay
Landlord Fixed Rent as provided under this Lease until such time as such
approval is obtained by Tenant. Tenant shall use its best efforts to obtain any
necessary ECRA approval expeditiously, and to prevent any interference between
its ECRA compliance activities and the activities of Landlord at the Demised
Premises from arising.
34.03. Should ECRA compliance requirements be triggered by Landlord or any
transaction affecting Landlord, Tenant will cooperate in signing any necessary
applications or affidavits required for securing any necessary ECRA approval,
however, any costs of making such application shall be borne by Landlord.
34.04. Should the Lease be terminated by either Landlord or Tenant due to
damage of the Demised Premises occasioned by fire or other casualty, Tenant will
undertake the obligation to comply with ECRA for its operations upon such
termination in accordance with this paragraph.
34.05. The provisions of this Article shall survive the termination of this
Lease.
ARTICLE 35 - MISCELLANEOUS
35.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement(s) which may be made between the parties concurrently with the
execution and delivery of this Lease.
35.02. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to.
18
35.03. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder Shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delays.
35.04. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall be
invalid or unenforceable, the remainder of this Lease shall not be affected and
shall be enforced to the extent permitted by law.
35.05. Within thirty (30) days after request by Landlord, Tenant shall
furnish to Landlord a copy of its then current audited financial statement which
shall be employed by Landlord only for purposes of financing the Land and
Building and not distributed otherwise without prior authorization of Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
Landlord:
XXXXX MOUNTAIN INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx, Vice President
[Corporate Seal]
Tenant:
PERISCOPE SPORTSWEAR, INC.
By: /s/ Xxxxx Xxxxx, Pres.
-------------------------------
President
[Corporate Seal]
19
RIDER TO LEASE DATED FEBRUARY 2ND, 1990 BETWEEN XXXXX MOUNTAIN INDUSTRIES, INC.,
AS LANDLORD AND PERISCOPE SPORTSWEAR, INC. , AS TENANT.
R1. If any of the provisions of this Rider shall conflict with any of the
provisions, printed or typewritten, of this Lease, such conflict shall resolve
in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is in compliance with all of the terms and conditions
contained herein, Tenant shall have one (1) option to extend the Term of its
lease of the Demised Premises, from the date upon which this Lease would
otherwise expire for one (1) extended period of five (5) years ("Extended
Period"), upon the following terms and conditions:
1. If Tenant elects to exercise said option, it shall do so by giving
notice of such election to Landlord on or before the date which is one (1) year
before the beginning of the Extended Period for which the Term is to be extended
by the exercise of such option. Tenant agrees that it shall have forever waived
its right to exercise any such option if it shall fail for any reason whatsoever
to give such notice to Landlord by the time provided herein for the giving of
such notice, whether such failure is inadvertent or intentional, time being of
the essence as to the exercise of such option.
2. If Tenant elects to exercise said option, the Term shall be
automatically extended for the Extended Period covered by the option so
exercised without execution of an extension or renewal lease. However, within
ten (10) days after request of either party following the effective exercise of
any such option, Landlord and Tenant shall execute, acknowledge and deliver to
each other duplicate originals of an instrument in recordable form confirming
that such option was effectively exercised.
3. The Extended Period shall be upon the same terms and conditions as are
in effect immediately preceding the commencement of such Extended Period;
provided, however, that Tenant shall have no right or option to extend the Term
for any period of time beyond the expiration of the Extended Period and,
provided further, that in the Extended Period the Fixed Rent shall be as
follows:
(a) The Fixed Rent during the Extended Period shall be at Fair Market
Value. Fair Market Value (FMV) shall be determined by mutual agreement of the
parties. If the parties are unable to agree on the FMV, the parties shall choose
a licensed Real Estate Appraiser who shall determine the FMV. The cost of said
Real Estate Appraiser shall be borne equally by the parties. If the parties are
unable to agree on a licensed Real Estate Appraiser, each party shall select one
Appraiser to appraise the FMV. If the difference between the two appraisals is
20% or less of the lower appraisal, then the FMV shall be the average of the two
appraisals. If the difference between the two appraisals is greater than 20% of
the lower appraisal, the two Appraisers shall select a third licensed Real
Estate Appraiser to appraise the FMV. The FMV shall in such case be the average
of the three appraisals. The cost of the third appraisal shall be borne equally
by the parties.
20
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period not yet exercised.
5. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice while Tenant was in default in the
performance of any of its obligations under the Lease, and such rejection shall
automatically render Tenant's election to exercise such option null and void and
of no effect.
6. The option provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
R3. Tenant shall have the use of forty (40) unreserved parking spaces
adjacent to or in close proximity to the Building.
XXXXX MOUNTAIN INDUSTRIES, INC
(Landlord)
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx, Vice President
PERISCOPE SPORTSWEAR, INC.
(Tenant )
By: /s/ Xxxxx Xxxxx, President
-----------------------------------
21
LEASE MODIFICATION AGREEMENT
----------------------------
THIS LEASE MODIFICATION AGREEMENT, made this 31 day of March, 1992,
--
between STAR XXXXX LIMITED PARTNERSHIP, a New Jersey Limited Partnership, (by
assignment from XXXXX MOUNTAIN INDUSTRIES, INC.), having an office at 000 Xxxxx
Xxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Landlord") and PERISCOPE SPORTSWEAR, INC., a New York corporation having an
office at 0000 00xx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as "Tenant").
WITNESSETH:
-----------
WHEREAS, by Agreement of Lease dated February 2, 1990 (the "Lease"),
which Lease will expire on September 30, 2000, Landlord leased to Tenant and
Tenant hired from Landlord 30,079 total square footage located at 0000 00xx
Xxxxxx in North Bergen, New Jersey (hereinafter the "Demised Premises"); and
WHEREAS, Tenant wishes to lease the vacant space adjacent to the Demised
Premises containing approximately 19,700 square feet of Floor Space, as
described on Exhibit A attached hereto (the "Additional Premises"); and
WHEREAS, Landlord and Tenant wish to modify the Lease to reflect an
increase in the area of the Demised Premises, and amend the Lease accordingly;
NOW, THEREFORE, for and in consideration of the Lease, the mutual
covenants herein contained and the consideration set forth herein, the parties
agree as follows:
1. Thirty days following the date that the Additional Premises are Ready
for Occupancy (as defined in the Lease), Tenant shall immediately occupy and
begin paying Fixed Rent on the Additional Premises at the annual rate of four
and 50/100 dollars ($4.50) per square foot multiplied by the Floor Space of the
Additional Premises. Fixed Rent on the Additional Premises shall remain at four
and 50/100 dollars per square foot until September 30, 2000. In the event Tenant
exercises its option to renew, Fixed Rent on the Additional Premises during the
renewal period shall be the same rate as Fixed Rent on the Demised Premises.
22
2. On the date that the Additional Premises are Ready for Occupancy,
Tenant shall pay all Additional Charges provided for in the Lease with respect
to the Additional Premises and the Tenant's Fraction shall increase from 45.2%
to 75.08%.
3. Landlord shall, at its own cost and expense, prepare the Additional
Premises in the manner provided in the Landlord's Work Letter attached hereto as
Exhibit B.
4. Except as provided herein, all of the terms and conditions of the
Lease dated February 2, 1990 as amended above are in full force and effect and
are confirmed as if fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Modification
Agreement to be duly executed as of the day and year first above written.
STAR XXXXX LIMITED PARTNERSHIP
By: XXXXX MOUNTAIN INDUSTRIES, INC.
ATTEST: ("Landlord")
______________________ By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
PERISCOPE SPORTSWEAR,
ATTEST: ("Tenant")
________________________ By: /s/ Xxxxxx Xxxxx, V.P.
-----------------------------
Name:
Title:
23
